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Westin v. Nitowski (Estate of Nitowski)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 25, 2012
B232410 (Cal. Ct. App. Jan. 25, 2012)

Opinion

B232410

01-25-2012

Estate of ANN NITOWSKI, Deceased. DIANE WESTIN, Objector and Appellant, v. JOHN A. NITOWSKI, as Executor, etc., Petitioner and Respondent.

Diane Westin, in pro. per., for Objector and Appellant. Law Office of Carol L. Vallely and Carol L. Vallely for Petitioner and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YP09131)

APPEAL from an order of the Superior Court of Los Angeles County. Dudley W. Gray, II, Judge. Affirmed.

Diane Westin, in pro. per., for Objector and Appellant.

Law Office of Carol L. Vallely and Carol L. Vallely for Petitioner and Respondent.

Appellant Diane Westin is the daughter of the decedent, Ann Nitowski, and the sister of respondent John Nitowski, the executor of the estate. The two have a third sibling, Frederick Nitowski. Acting in propria persona, Westin appeals an order of the probate court directing her to reimburse the estate in the amount of $11,710.73 and authorizing John to pay himself and his attorneys extraordinary administrative and attorney fees totaling $57,169.59. As Westin has presented an inadequate record and no legal argument to support her contentions, we affirm the court's order.

Parties who share surnames with others involved in the litigation will be referred to by their first names.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were involved in an earlier litigation and appeal, Westin v. Nitowski (B198460) opinion filed March 27, 2008. In the prior litigation, Westin sought to bring real property partially owned by the decedent, a duplex co-owned with Frederick and his wife, Gwen, into the probate estate. Westin contended that decedent held title to the duplex as tenant in common with Frederick and Gwen; Frederick contended that Ann held title as a joint tenant, so that the duplex passed to him and his wife outside of probate on Ann's death. In the prior appeal, we found the deed ambiguous and affirmed the reasonable interpretation of the probate court, which concluded that the property was held in joint tenancy and passed to Frederick and Gwen outside the estate.

The decedent's will left her share of the property to Westin.

Shortly after this court issued its opinion and order, Westin filed a complaint in the Central District for quiet title, interference with contract and fraud against Frederick, Gwen and John. That action has apparently been resolved favorably to the defendants.

In March 2011, John, acting as the executor of Ann's estate, filed a first and final account and report and petition for settlement. The petition sought, among other things, authority to pay administrative and attorney fees and an order directing Westin to repay to the estate funds taken from a bank account held jointly with the decedent. Westin did not appear at the hearing on the petition. She attempted to file an opposition, but it was rejected due to failure to pay the required filing fee.

Westin currently lives in Colorado.

On May 9, 2011, the probate court issued an order approving the first and final account and report and proposed settlement. The order reflected that the estate held a cash balance of $52,310.71, not including any reimbursement owed by Westin. The order directed Westin to reimburse the estate the amount of $11,710.73. The order authorized the executor (John) to make the following payments: (1) to himself, $10,129.07 as statutory administrator's compensation and $4,400 for extraordinary administrative fees; (2) to two attorneys, one of whom was currently representing the executor and the other of whom had formerly represented the executor, $5,064.53 each as statutory attorney compensation; and (3) $52,769.59 for extraordinary attorney fees. The order also authorized John to "make a final [equal] distribution out of the principal of the Estate, if there are any funds in the Estate subsequent to payment of final costs and fees and 2010 taxes and other unknown expenses," to himself, Westin and Frederick.

In his petition, John had requested that the court preclude Westin from appealing the final settlement order unless she posted a $100,000 bond. The court did not include such requirement in its order.

DISCUSSION

An executor of an estate is obligated to defend suits against the estate and "[t]he expenses of litigation in defending such claims, including reasonable attorney fees, are part of the expenses of administration for which the executor is entitled to allowance." (Estate of Turino (1970) 8 Cal.App.3d 642, 647-648.) "The allowance of such expenditures and costs is subject to the approval of the probate court [citation] and its discretion will not be interfered with except where there is a manifest abuse of discretion. [Citations.]" (Id. at p. 648.) Expenditures for an executor's successful defense against exceptions to his account are also chargeable against the estate. (Estate of Beach (1975) 15 Cal.3d 623, 644.) "In fixing the amount of extraordinary compensation for the executor and its attorneys the court could properly consider not only the time spent but also such factors as the value of the estate, the skills exercised, the amount in dispute, and the results obtained." (Id. at p. 645.) "The awards must be upheld unless they appear so clearly out of proportion to the services performed as to be an abuse of discretion." (Ibid.)

Westin contends the court authorized payment for expenses that were outside the function of administering the estate; she further suggests the $11,710.73 she was ordered to reimburse the estate should have been prorated and subtracted from her share of proceeds of the estate. She has provided an inadequate record and no legal argument to support her contentions.

"The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 8:15, p. 8-5 (rev. #1, 2009), italics omitted.) The appellant carries the burden of overcoming the presumption of correctness, which includes providing an adequate appellate record to demonstrate that an error occurred. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) In addition, "[a]n appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.) Where the record provided is inadequate for meaningful review, "'the appellant defaults and the decision of the trial court should be affirmed.'" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Westin's assertion that the order is "extraordinarily asinine" and "judicially incorrect," and that it awards fees for expenses constituting "frivolous nonsense not conducive to the functions of the Estate" is no substitute for reasoned argument, legal authority or an adequate record. In the absence of these prerequisites to appellate review, her contentions are forfeited, and the order of the probate court must be affirmed.

By separate motion, John requests that we impose sanctions against Westin for filing and prosecuting a frivolous appeal. Courts of Appeal are authorized to impose monetary sanctions when a party files and prosecutes a frivolous appeal. (Code Civ. Proc., § 907; California Rules of Court, rule 8.276.) An appeal is frivolous "when it is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) A party appealing in propria persona, however, is not held to the standard of what a "'reasonable attorney'" should know "unless and until that appellant becomes a persistent litigant." (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.)

John contends that the present appeal was brought solely to harass and delay. He contends proof of Westin's improper motive can be derived from the evidence that she and her son Bruce have repeatedly "harass[ed]" John and Frederick in the past through "improper use of the courts." The evidence presented in support of the motion indicates that Bruce has filed 14 civil complaints, was declared a vexatious litigant in 2007, and suffered a criminal conviction for vandalizing the duplex. Bruce is an adult, responsible for his own actions, and has been duly sanctioned and punished by the courts. We perceive no basis to penalize Westin for her son's conduct. With respect to Westin, the only evidence of impropriety presented to support the motion is the evidence of the prior unsuccessful appeal of the order denying her petition to include the duplex in the estate, the litigation of the Central District case which also involved the duplex, and the current appeal. The initial litigation and subsequent appeal cannot be deemed frivolous, as they presented substantive issues which were resolved on the merits after careful consideration of the opposing positions. With respect to the federal action, the scant information presented indicates that Westin made an attempt to raise new issues, such as fraud. "Courts should employ sanctions sparingly to deter only the most egregious conduct." (Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 22.) There is insufficient evidence in the record of egregious conduct on Westin's part to support an award of sanctions.

John also suggests the appeal was meritless. Due to the inadequacy of the record, we cannot determine whether there was any basis for Westin to pursue an appeal.

We take judicial notice of the records of judicial proceedings submitted in support of the motion. (Evid. Code, § 452, subd. (d).)

John's memorandum states that Westin filed three "meritless" petitions in the probate action, but presents no evidence to support that contention.
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DISPOSITION

The order is affirmed. Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J. We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.


Summaries of

Westin v. Nitowski (Estate of Nitowski)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 25, 2012
B232410 (Cal. Ct. App. Jan. 25, 2012)
Case details for

Westin v. Nitowski (Estate of Nitowski)

Case Details

Full title:Estate of ANN NITOWSKI, Deceased. DIANE WESTIN, Objector and Appellant, v…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 25, 2012

Citations

B232410 (Cal. Ct. App. Jan. 25, 2012)